Bombay High Court
Devidas Walchand Rathod vs The State Of Maharashtra on 18 March, 2016
Bench: A.V. Nirgude
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 99 OF 2013
CRIMINAL APPEAL NO. 109 OF 2013
CRIMINAL APPEAL NO. 120 OF 2013
*******
CRIMINAL APPEAL NO. 99 OF 2013
Savita Kamlakar Kokate
Age. 34 years, Occ. Household,
.. Appellant
[original
R/o. Dastapur, Tal. Lohara, accused
Dist. Osmanabad. No.3]
Versus
The State of Maharashtra .. Respondent
Mr.Sudarshan J. Salunke, Advocate for the appellant.
Mr.K.S. Patil, A.P.P. for respondent/State.
WITH
CRIMINAL APPEAL NO. 109 OF 2013
Devidas Walchand Rathod .. Appellant
Age. 47 years, Occ. Agri, [original
R/o. Tugaon Chaugule Wasti, Tal. Omerga, accused
Dist. Osmanabad. No.2]
Versus
The State of Maharashtra .. Respondent
Mr.B.R. Survase, Advocate for the appellant.
Mr.K.S. Patil, A.P.P. for respondent/State.
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WITH
CRIMINAL APPEAL NO. 120 OF 2013
Kamlakar s/o. Ram Rathod .. Appellant
Age. 44 years, Occ. Agril, [original
R/o. Tugaon, Tal. Omerga, accused
Dist. Osmanabad.
No.1]
Versus
The State of Maharashtra .. Respondent
Mr.R.A. Jaiswal h/f. Mr. N.S. Ghanekar, Advocate for the
appellant.
Mr.K.S. Patil, A.P.P. for respondent/State.
CORAM : A.V.NIRGUDE &
INDIRA K. JAIN, JJ.
DATED : 18.03.2016
ORAL JUDGMENT : [PER : A.V. NIRGUDE,J.]:-
1. All these three appeals can be disposed of by
this common judgment. All these appeals challenge
judgment and order dated 25.02.2013 passed by learned
Sessions Judge, Omerga in Sessions Case No.123 of 2011.
The appellants herein were accused before the Trial
Court. Learned Sessions Judge convicted all the accused
for offences punishable under section 302 read with
section 120-B of the Indian Penal Code and sentenced them
to suffer life imprisonment and fine of Rs.50,000/- each
with default clause.
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2. The prosecution case in brief is as under. The
parties to the appeal would be referred as per their
status in the lower Court :-
. Deceased Vithal was father-in-law of accused
No.3, who is a widow. Accused No.1-Kamlakar was
cultivating land belonging to deceased Vithal on contract
basis. He had illicit relations with accused No.3-
Savita. Accused No.2-Devidas was a relative of accused
No.1. Vithal had decided to take away his land from
cultivation of accused No.1-Kamlakar. To this proposal,
accused No.3-Savita had strong objection. The accused,
thus, had reason to get aggrieved and it is stated that
they had motive to eliminate Vithal. On 23 rd May, 2011
early in the morning Vidhal's dead body was found near
village Borman Tanda. It was found that Vithal was
Murdered. He had sustained many injuries. Police was
informed. They registered offence and started
investigation. On 25th May, 2011 the accused were
arrested. After completion of investigation, charge-
sheet was sent and as said above after trial as many as
15 witnesses were examined and the accused were
convicted.
3. Learned Counsel for appellant in Criminal Appeal
No.99 of 2013 Mr. Salunke asserted that this was a case
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of no evidence and yet learned Sessions Judge convicted
his client and others. He took us through entire record
and now we are inclined to accept Mr.Salunke's contention
that this is a case that there was no evidence at all.
Yet, in order to complete formality of judgment, we would
make a gist of relevant circumstances that are brought on
record.
4. P.W.15-Vithal Kale (ASI) stated that the police
of Naldurg Police Station received information on 23 rd
May, 2011 in the morning that a dead body was lying near
village Boraman Tanda. Police then went there and after
inquest, sent dead body for post-mortem. Doctor opined
that the deceased died due to strangulation. The post-
mortem report on record has gone on record un-
controverted. It shows that Vithal was first assaulted
and thereafter strangulated with rope like object. With
this evidence on record, the prosecution could establish
that Vithal died homicidal death.
5. P.W.5-Bhaskar and P.W.13-Bandu, who are near
relatives of deceased Vithal, asserted that there was
illicit relation between accused No.1-Kamlakar and
accused No.3-Savita. They had seen accused No.1-Kamlakar
visiting accused No.3-Savita's house.
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6. We have no difficulty in accepting this part of
prosecution case. Such relationship is not secret in
villages and therefore we would not disbelieve the
witnesses when they stated that accused No.1-Kamlakar and
accused No.3-Savita had illicit relation. These two
witnesses also stated that Vithal had told that he was
intending to take away land which was given to accused
No.1-Kamlakar for cultivation and the proposal of
staunchly opposed by accused No.3. On account of this,
there was quarrel between deceased Vithal and accused
No.1-Kamlakar and accused No.3-Savita together. We are
inclined to believe this part of the prosecution case
also. We are, therefore, inclined to even believe that
the accused had developed a grudge against deceased
Vithal.
7. In has come in the deposition of P.W.5-Bhaskar
that on 21.05.2011 at about 5.30 p.m. he entered the
house of accused No.3 and saw accused No.1-Kamlakar and
accused No.2-Devidas sitting with her and discussing
something. He said that as soon as he entered the house
they stopped talking. This circumstance according to the
prosecution would amount to conspiracy being hatched
amongst the accused for committing Vithal's murder. We
are not inclined to accept this conclusion of the
prosecution though we are inclined to believe prosecution
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witness No.5 that on 21st May, 2011 he had an occasion to
go inside the house of accused No.3-Savita and had
occasion to see accused No.1 - Kamlakar and accused No.2-
Devidas sitting with her discussing something. This
witness did not hear the discussion. It is, therefore,
hazardous to make guess that the accused were conspiring
and plotting Vithal's murder. On the basis of this piece
of evidence no one can draw such conclusion.
8. The next piece of evidence on which prosecution
placed reliance is the fact that after arrest the
Investigating Officer took in charge the clothes of
accused No.1 - Kamlakar and accused No.2 - Devidas.
These clothes were then sent for medical analysis and
then it was found that they were stained with human blood
of group "A". The victim's blood group was also "A".
Unfortunately for the prosecution, the blood group of
accused No.1 - Kamlakar and accused No.2-Devidas thus
cannot conclusively connect them to the murder.
9. The last circumstance of the prosecution case is
the fact that near the dead body of Vithal, they found
piece of key-chain. It was a peculiar key-chain having
word "Raje" inscribed on it. P.W.5-Bhaskar stated that
he had seen similar key-chain on accused No.1-Kamlakar's
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motor-cycle. The prosecution, however, did not bring on
record that the part of the key-chain that was found on
the spot was belonging to accused No.1 only. No witness
came forward to depose that the key-chain found at the
scene of occurrence was belonging to accused No.1-
Kamlakar. The prosecution, thus, placed reliance on
their guesswork. The prosecution tends to believe that
the key-chain that was found on the spot could be
belonging to accused No.1-Kamlakar. The Investigating
Officer, could not collect sufficient circumstances to
form a chain to connect the accused with homicidal death
of Vithal. We are, therefore, allowing the appeals.
Hence, following order is passed :-
i. All the Criminal Appeals are allowed.
ii. The judgment and order passed by learned
Sessions Judge, Osmanabad in Sessions Case No.123 of 2011
on 25.02.2013 is quashed and set aside.
iii. The appellants/original accused are acquitted
for the offences with which they were charged.
iv. Accused Nos. 1 & 2 are in custody. They be
released from custody, if not required in any other case.
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v. Accused No.3 is on bail. Her bail bond stands
cancelled.
vi. Fine amount, if deposited, shall be refunded to
the appellants/original accused.
[INDIRA K. JAIN,J.]
ig [A.V.NIRGUDE,J.]
snk/2016/MAR16/crap99.13
